THIS agreement (the “Agreement“) is a legal agreement between the Customer and Exen Legal Solutions Limited, (a company registered in England and Wales with company number 07603019 whose registered office is at The Media Centre, 7 Northumberland Street, Huddersfield, West Yorkshire, England, HD1 1RL, trading under the name “Katchr” (“Katchr”).

1                    Interpretation

1.1              In these Conditions, the following definitions apply:

“Account” an instance of the Software made exclusively available to the Customer;

“Appropriate Safeguards” means such legally enforceable mechanism(s) for transfers of Personal Data outside the EEA as may be permitted under Data Protection Legislation from time to time;

“Customer” means the person(s) purchasing the Software Services from Katchr under the terms of this Agreement whose details are set out in the Order;

“Customer Data” means the data to which Katchr is given access by the Customer, and any copies of that data made for the purpose of using the Software Services or facilitating the Customer’s use of the Software Services;

“Data Controller” has the meaning set out in the Data Protection Legislation;

“Data Processor” has the meaning set out in the Data Protection Legislation;

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (“GDPR“); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) as amended;

“Data Protection Particulars” means the data protection particulars set out in Schedule 2;

“Data Subject” has the meaning set out in the Data Protection Legislation;

“Data Subject Request” means an actual or purported request or notice or complaint from (or on behalf of) a Data Subject (or a third party acting on a Data Subject’s request) exercising his rights under the Data Protection Legislation;

“Documentation” the documents made available to the Customer by Katchr online via  https://portal.katchr.com/ or such other web address notified by Katchr to the Customer from time to time which sets out a description of the Software Services and the User instructions for the Services;

“Effective Date” the date on which the Customer signs this Agreement;

“ICO” means the UK Information Commissioner’s Office, or any successor or replacement body from time to time, or other applicable Supervisory Authority;

“Information” any and all documentation, materials, software, code and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, customers, pricing, transactions, software, suppliers or methods of one Party and disclosed to or otherwise obtained by the other Party in connection with this Agreement;

“Initial Term” the initial term of this Agreement set out in the Order commencing on the Software Services Commencement Date;

“Intellectual Property” any and all intellectual property rights including patents, trademarks, design rights, copyright, rights in data and databases, domain names, topography rights,
and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with any and all goodwill relating or attached thereto, the right to apply for registration of and/or register such rights and all extensions and renewals thereof;

“LEAP API” means the application programming interface and related code (supplied by the third party, LEAP Software Developments Pty Limited) which Katchr use to provide the Software Services to the Customer;

“Order” means the order to be placed by the Customer for the Software Services in the form attached at Schedule 1;

“Parties” means the Customer and Katchr and “Party” shall be construed accordingly;

“Personal Data” means any information relating to an identified or an identifiable natural person (data subject) being one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity, or as otherwise defined under applicable Data Protection Legislation.  Personal Data for the purposes of this Agreement, does not include Special Category Personal Data as the Customer shall not disclose or provide any access to Special Category Personal Data to Katchr;

“Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data;

“Processing” has the meaning set out in the Data Protection Legislation (and “Process” and “Processed” when used in relation to the Processing of Personal Data, shall be construed accordingly);

“Processor” has the meaning set out in the Data Protection Legislation;

“Security Requirements” means the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular, the seventh data protection principle of the Data Protection Legislation as applicable);

“Software” means Katchr’s software product provided as part of the Software Services as described in the Order, including any updates and modifications made available from time to time by Katchr;

“Software Services” means the services provided by Katchr to the Customer under this Agreement using the Software, as more particularly described in the Documentation;

“Software Services Charges” means the fixed charges payable by the Customer for the provision of the Software Services, as detailed and/or calculated in accordance with the Order;

“Software Services Commencement Date” means the date set out in the Order;

“Special Category Personal Data” means Personal Data that reveals such categories of data as are listed in Section 10 and 11 of the Data Protection Act 2018 and for the purpose of this Agreement it shall also include criminal records or information relating to criminal history, and information relating to any proceedings or sentences of any court in such proceedings;

“Standard Technical Support Services” means the support services in relation to the Software Services provided by Katchr to the Customer free of charge in accordance with the Standard Technical Support Services Policy as set out at https://katchr.com/policies/express ;

“Term” has the meaning set out in clause 12.1;

“Users” means the employees, contractors and agents of the Customer who from time to time access the Software Services. The number of Users who can access the Software Services at any one time will be limited in accordance with the ‘Maximum Users’ figure set out in Schedule 1;

“Working Day” means any day falling on or between Monday to Friday, excluding all public and bank holidays in England and Wales; and

“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2             The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context and reference to the whole includes reference to part.

2                   Licence to use the Software Services

2.1          In consideration of the payment of the Software Services Charges by the Customer, and subject to the restrictions set out in this Agreement, Katchr hereby grants to the Customer a non-exclusive, non-transferable right to permit the Users to use the Software Services and the Documentation commencing on the Software Services Commencement Date during the Term in accordance with the terms of this Agreement.

2.2              Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, the Customer may not nor permit others to:

(a)       attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;

(b)              rent, lease, sublicense, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis;

(c)              translate, reverse engineer, decompile, disassemble, unbundle, modify or create derivative works based on the Software, except as expressly permitted by law;

(d)              vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Software; or

(e)              access all or any part of the Software Services and Documentation in order to build a product or service which competes with the Software Services and/or the Documentation.

2.3       The Customer undertakes to use its best endeavours to prevent any unauthorised access to, or use of, the Software Services and/or the Documentation and, in the event of any such unauthorised access or use, it shall promptly notify Katchr.

2.4             The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property, and Katchr reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.5            The integrity of the Software is protected by technical protection measures so that the Intellectual Property rights in the Software are not misappropriated. The Customer must not attempt in any way to remove or circumvent such technical protection measures, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in its possession for private or commercial purposes, any means whose sole purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.

 3               Provision of the Software Services

3.1            Katchr shall use its reasonable endeavours to make the Software Services available 24 hours a day, seven days a week, except for:

(a)               planned maintenance carried out during the maintenance window of 9.00pm to 06.00 am UK time;

(b)               any necessary unscheduled maintenance performed as required at any time and the Customer shall be notified following such performance.

3.2            Katchr reserves the right at any time to make any modification, change or addition to, or replacement of, the Software Services where this is required to conform with any applicable statutory
requirements.

3.3          Katchr shall not be liable for any failure to provide the Software Services in accordance with this Agreement to the extent that such failure is caused directly or indirectly by the Customer’s negligence or breach of any term of this Agreement.

3.4         Each party shall comply with and agrees to the terms of Katchr’s Data Privacy Policy available at www.katchr.com/privacy-policy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Katchr in its sole discretion.

3.5            The Customer acknowledges and agrees Katchr and its representatives shall be entitled to access the Account in order to provide the Standard Technical Support Services, for maintenance of the Software Services and otherwise as necessary to provide the Software Services.

4                  Training 

4.1             Unless otherwise specified in the Order, Katchr shall not be obliged to provide the Customer with any training in relation to the use of the Software Services.

5                 Support Services

5.1          Katchr will, as part of the Software Services and at no additional cost to the Customer, provide the Customer with Katchr’s Standard Technical Support Services in accordance with Katchr’s Standard Technical Support Services Policy in effect at the time that the Software Services are provided. Katchr may amend the Standard Technical Support Services Policy in its sole and absolute discretion from time to time.

6                 Warranties

6.1            Katchr undertakes that the Software Services will be performed substantially in accordance with the Documentation and with reasonable care and skill.

6.2            The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Software Services contrary to Katchr’s instructions, or modification or alteration of the Software Services by any party other than Katchr or Katchr’s duly authorised contractors or agents. If the Software Services do not conform with the foregoing undertaking, Katchr will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
Notwithstanding the foregoing, Katchr:

(a)              does not warrant that the Customer’s use of the Software Services will be uninterrupted or error-free; or that the Software Services, Documentation and/or the information obtained by the Customer through the Software Services will meet the Customer’s requirements; and

(b)             is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3            Katchr warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7                 Customer Obligations

7.1            The Customer shall:

(a)              only use the Software Services in accordance with the terms of the Agreement for its own internal purposes;

(b)              use the Software Services in accordance with Katchr’s reasonable instructions and any laws, regulations and licenses which may apply to the Customer’s use of the Software Services from time to time;

(c)              ensure that the Users use the Software Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;

(d)             obtain and shall maintain all necessary licences, consents, and permissions necessary for Katchr, its contractors and agents to perform their obligations under this Agreement;

(e)             ensure that its network and systems comply with the relevant specifications provided by Katchr from time to time;

(f)               provide Katchr with up-to-date information, co-operation and support as Katchr shall reasonably require pursuant to this Agreement.

8                 Charges and Payment

8.1            The Software Service Charges shall be payable by the Customer by means of a direct debit payment payable in advance either monthly or annually (as set out in the Order).  All amounts and fees stated in this Agreement:

(a)              are exclusive of Value Added Tax and any other applicable taxes and duties;

(b)             shall, unless otherwise agreed between the Parties, be payable in the currency detailed in the Order; and

(c)              are non-cancellable and are non-refundable.

8.2            If the Customer fails to make any payment due to Katchr by the due date for payment then, without prejudice to Katchr’s other rights and remedies, Katchr may charge the Customer interest on the overdue amount which shall accrue at four percent (4%) above the official interest rate of the Bank of England from time to time, unless for any period where the base rate is below 0% in which interest shall accrue at 4%. Such interest shall accrue on a daily basis from the due date of payment until the date of actual payment of the overdue amount, whether before or after
judgment. The Customer shall pay the interest immediately on demand by Katchr.

8.3            Following the expiration of the Initial Term Katchr may increase the Software Service Charges following the expiration of the Initial Term once per year by giving 60 days’ written notice to the Customer

9                 Intellectual Property

9.1            All Information of Katchr and all Intellectual Property and any other rights in the Software and in or arising from the Software Services and/or any other services provided under or in connection with this Agreement shall be and shall remain at all times the exclusive property of Katchr or relevant third party and the Customer shall acquire no right, title or interest in or to the same and shall use such items solely as permitted by the terms of this Agreement.

10              Confidentiality

10.1         Subject to the remainder of this clause 10, neither the Customer nor Katchr shall, without the other Party’s prior written consent, disclose to any third party Information (other than the business name of the other Party) which comes to that Party’s attention pursuant to this Agreement. Each Party shall only use the Information of the other Party to exercise its rights and/or perform its obligations under this Agreement.

10.2         The Customer agrees that Katchr may disclose the Information of the Customer to any relevant third party to the extent reasonably required by such third party in order to allow provision of the Software Services and/or to its professional advisers in connection with this Agreement.

10.3        The provisions of clause 10.1 shall not apply to information which:

(a)             is in or comes into the public domain otherwise than by breach of this Agreement, except that any compilation of otherwise public information in a form not publically known shall nevertheless be treated as confidential Information;

(b)                is in the other Party’s possession prior to the commencement of negotiations for this Agreement as shown by written evidence that predates the date of such negotiations;

(c)                is or was lawfully received from a third party not under an obligation of confidentiality in respect of the same as shown by written evidence that predates the date of this Agreement;

(d)             was developed independently of and without reference to the other Party’s Information; or

(e)             is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required), in which case each Party shall promptly notify the other Party of any such disclosure requirement.

10.4           Katchr shall be entitled to publicise that the Customer has licensed the Software and purchased the Software Services from Katchr in its advertising or promotional materials (including as case studies), press releases, tenders, proposal, speeches, articles and other similar materials. 

11              Liability

11.1         This clause 11 sets out the entire financial liability of Katchr (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a)             arising under or in connection with this Agreement;

(b)             in respect of any use made by the Customer of the Software Services,  Documentation and/or any other services provided under or in connection with this Agreement or any part of
them; and

(c)              in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2         Except as expressly and specifically provided in this Agreement:

(a)             the Customer assumes sole responsibility for results obtained from the use of the Software Services and the Documentation by the Customer, and for conclusions drawn from such use. Katchr shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Katchr by the Customer in connection with the Software Services, or any actions taken by Katchr at the Customer’s direction;

(b)             all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and

(c)              the Software Services and the Documentation are provided to the Customer on an “as is” basis.

11.3        Nothing in this Agreement shall exclude or limit Katchr’s liability for:

(a)             death or personal injury caused by its (or its employees’, agents’ or contractors’) negligence; and

(b)             fraud or fraudulent misrepresentation; and

(c)              any other liability the exclusion or limitation of which is not permitted by English law.

11.4        Subject to clause 11.2 and 11.3:

(a)             Katchr shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: loss of profits; loss of
business; depletion of goodwill and/or similar losses; or loss or corruption of data or information; or pure economic loss; or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

(b)             Katchr’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited, where the liability relates to the Software Services, to the greater of the total Software Service Charges payable by the Customer under this Agreement during the Initial Term or the Renewal Term.

12              Term

12.1        This Agreement shall commence on the Effective Date and shall continue for the Initial Term and automatically renew for additional renewal terms of 12 months’ each (“Renewal Terms“) unless:

(a)              either party notifies the other party not less than 30 days’ written notice to terminate this Agreement to expire on the Initial Term or the then current Renewal Term; or

(b)             otherwise terminated in accordance with the provisions of this Agreement.

12.2        The Customer does not have any right to terminate this Agreement without cause at any other time and shall only have the rights to terminate as set out under clause 13.1
below.

13              Termination

13.1         A Party shall have the right to terminate this Agreement at any time on immediate notice to the other Party in the event that the other Party:

(a)              fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

(b)             commits an irremediable material breach of this Agreement, persistently repeats a remediable material breach or commits any remediable material breach and fails to remedy it within thirty (30) days of receipt of the notice of the breach requiring remedy of the same; or

(c)              the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

(d)             the Customer’s financial position deteriorates to such an extent that in Katchr’s opinion the Customer’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

13.2        Katchr may terminate this Agreement (or any part of it) and/or the Software Services (or any part of them) by serving written notice on the Customer with immediate effect, if termination is required for legal or regulatory reasons.

13.3         Katchr may terminate this Agreement (or any part of it) and or the Software Services (or any part of them) by serving 60 days written notice on the Customer if the  third party provider of the LEAP API terminates its agreement with Katchr. If the Customer has paid the Software Services Charges annually in advance, Katchr shall refund the applicable charges paid by the Customer in respect of the period following termination. Clause 14.1 (b) shall not apply in this case.

13.4         The termination of this Agreement shall be without prejudice to the accrued rights and liabilities of either Party subsisting under this Agreement prior to termination.

13.5          Katchr may at its sole discretion suspend immediately the provision of the Software Services and/or any other services provided under this Agreement (or any part of them) until further notice on notifying the Customer either orally (confirming such notification in writing) or in writing if Katchr is entitled to terminate this Agreement. Any suspension of the Services shall not exclude Katchr’s right subsequently to terminate this Agreement.

14              Consequences of Termination

14.1         Upon termination of this Agreement for any reason, the Customer shall:

(a)              immediately cease to make use of the Software Services;

(b)             immediately pay any outstanding sums due under this Agreement; and

(c)              either return or destroy all of Katchr’s Information or any document containing part thereof, together with all copies of such Information (including, to the extent reasonably possible, all electronic copies) and shall on reasonable request provide written confirmation that such steps have been taken.

14.2         Any terms and conditions forming part of this Agreement which are agreed by the Parties to survive termination or which by their nature are to survive termination, shall survive and continue in full force and effect.

15              Force Majeure

15.1        Katchr shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.

16              Data Protection

16.1         The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

16.2         Each of the Parties acknowledges and agrees that the Data Protection Particulars as set out in the Order is an accurate description of the Personal Data to be Processed under this Agreement.

16.3         If Katchr Processes any Personal Data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the Data Controller and Katchr shall be a Data Processor and in any such case:

Katchr shall:

(a)              comply with the Data Protection Legislation in its Processing of the Personal Data required in the performance of the Agreement, and shall provide such assistance and/or co-operation as is reasonably necessary or reasonably requested by the Customer to assist the Customer in complying with the Data Protection Legislation;

(b)             only Process the Personal Data in accordance with the Customer’s documented instructions and to the extent necessary to perform the Services under this Agreement;

(c)              promptly comply with any request from the Customer to amend, transfer or delete the Personal Data;

(d)             at the Customer’s written request (and reasonable cost and expense), provide the Customer with a copy of all Personal Data held by it in the format as reasonably specified by the Customer;

(e)              keep the Personal Data as confidential information;

(f)              with effect from the Software Services Commencement Date, implement and maintain such technical and organisational measures as are required to enable the Personal Data to be Processed in compliance with at least the obligations imposed on the Customer by the Security Requirements;

(g)             if requested by the Customer, provide such information as is reasonably necessary to enable the Customer to satisfy itself of Katchr’s compliance with clause 16.3(f);

(h)             allow the Customer, its employees, authorised agents or advisers, upon prior written notice, access to Katchr’s written records which in Katchr’s reasonable opinion demonstrate
compliance with the terms of this Agreement;

(i)               without prejudice to Katchr’s obligations with respect to Katchr’s Personnel, use reasonable endeavours to:

(i)               take reasonable steps to ensure the reliability and integrity of any of Katchr’s Personnel who shall have access to the Personal Data;

(ii)             ensure that only such members of Katchr’s Personnel (and any sub-processors named in the Data Protection Particulars) required by it to assist it in fulfilling its obligations under the Agreement shall have access to the Personal Data (and that no other member of Katchr’s Personnel shall have access to such Personal Data);

(iii)            ensure that each member of Katchr’s Personnel shall have undergone reasonable levels of training in Data Protection Legislation and in the care and handling of Personal Data; and

(iv)            ensure that each member of Katchr’s Personnel shall have entered into appropriate contractually binding confidentiality undertakings that shall apply to the Personal Data;

(j)               not transfer any Personal Data outside the EEA without the prior written consent of the Customer which will require Katchr to have in place Appropriate Safeguards;

(k)              promptly (and in any event within 24 hours) notify the Customer upon becoming aware of any Personal Data Breach, and will:

(i)               take all reasonable steps (and procure that its sub-contractors take all reasonable steps) to prevent or minimise the effects of the Personal Data Breach;

(ii)             implement (and endeavour to procure that its sub-contractors implement) measures necessary to restore the security of compromised Personal Data; and

(iii)            provide the Customer with co-operation and assistance to make any notifications to the ICO and affected Data Subjects;

(l)               notify the Customer as soon as possible (and in no event later than within 2 Working Days) following its receipt of any Data Subject Request, and shall:

(i)               not disclose any Personal Data in response to any Data Subject Request without the Customer’s prior written consent; and

(ii)             provide the Customer with co-operation and assistance required by the Customer in relation to any such Data Subject Request;

(m)           comply with the Customer’s reasonable requirements in relation to the Customer’s compliance with any Data Subject Request.

16.4         The Customer warrants and agrees that:

(a)              Katchr is entitled to Process the Personal Data as part of the Services and such use will comply with the Data Protection Legislation;

(b)             where required it has obtained the appropriate consent from a Data Subject to allow Katchr to Process the Personal Data as part of the Services as anticipated by the Agreement;

(c)              all Personal Data to be Processed by Katchr is necessary, accurate and up to date; and

(d)             it will not provide Katchr with access to any Special Category Personal Data.

16.5         On termination of this Agreement for any reason, Katchr will securely delete or destroy or, if directed in writing by the Customer, return and not retain, all or any Personal Data related to this
Agreement in its possession or control.

16.6         If any law, regulation, or government or regulatory body requires Katchr to retain any documents or materials that it would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

16.7         If Katchr’s performance of any of its obligations under this Agreement is prevented or delayed by the Customer’s act, omission or failure to perform any relevant obligation under this Agreement (“Customer Default“):

(a)        Katchr shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays its performance of any of its obligations;

(b)            Katchr shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer’s failure or delay to perform any of its obligations as set out in clause 16.4.

17              General

17.1          No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17.2          This Agreement, and any documents referred to therein, constitute the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.  Nothing in this clause shall limit or exclude any liability for fraud.

17.3         Unless otherwise stated herein, no variation of this Agreement shall be effective unless it is agreed in writing and signed by the Parties (or their authorised representatives).

17.4         Katchr may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

17.5          The Customer shall not assign, purport to assign or otherwise transfer this Agreement and/or any of its obligations thereunder, in whole or in part, without Katchr’s prior written consent.

17.6          If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

17.7          The Parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it unless specifically provided for this Agreement.

17.8         Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

17.9         Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next Working day delivery service, commercial courier, or email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause; if sent by pre-paid first class post or other next Working day delivery service, at 9.00 am on the second Working Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Working Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

17.10      This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

17.11      The Customer irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim brought by it arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

Order Form

Schedule 2

Data Protection Particulars